Gabriel Renneisen
Volume 77, Issue 2, 459-500
In the wake of Rucho v. Common Cause, partisan gerrymandering remains a nonjusticiable political question. This retreat from judicial oversight leaves a significant gap in the protection of democratic governance. The United States Constitution, as currently interpreted, offers little substantive support for voters’ rights as such. Courts locate the right to vote in the Equal Protection Clause of the Fourteenth Amendment, but that Clause protects equal access to voting rights—not meaningful participation, representation, or influence; it requires scrutiny only where legislatures rely on unconstitutional criteria to classify voters. Notably, at the time of this writing, California and Texas are in a standoff of mutually assured gerrymandering. Partisan gerrymandering does not rely on impermissible classifications. It involves political intent, which the Court treats as constitutionally permissible. Racial gerrymandering claims proceed under a different logic, one rooted in suspect classifications and heightened scrutiny. That framework cannot carry over to partisan gerrymandering. Without a manageable standard for scrutinizing partisanship, courts cannot adjudicate gerrymandering claims as voting rights violations under the Equal Protection Clause.
This Note offers a comparative lens. In Canada, courts recognize a constitutional right to vote that includes effective representation. In the voting context, The United States lacks such a rights-based foundation. The Canadian model permits judicial intervention when redistricting threatens democratic structures. To address partisan gerrymandering, United States courts must move beyond formal equality and articulate a substantive right to democratic participation. Only then can the judiciary respond to the deeper harms gerrymandering creates.